Part 1: What Leaders Must Consider Now
Given the complexity of the topic, we’ve decided to break up this blog into a two post series. This first part will outline some of the many issues employers must consider and, next week, we’ll share Aduro’s perspective on how to address these issues with concrete steps to consider and to plan around.
With ongoing “shelter in place” requirements affecting 90% of the U.S. population, it may seem premature to start planning for the inevitable return of employees to the workplace. People leaders are mostly consumed with the challenges of managing a remote work force and protecting essential workers who need to be on site.
While crisis planning is the norm right now, thoughtful leaders are starting to sketch out next steps in developing return-to-work policies that will, in a thoughtful way, allow a large percentage of the workforce to return to their workplaces.
Why start now? Because, bluntly, there are a host of challenges ahead, including legal, programmatic, and social issues, that won’t be solved in a week or two, and that will require substantial discussions between leadership, legal counsel, and facilities/security teams.
A note that this blog is no substitute for legal counsel and provides general information (not legal advice). Given the fast-moving nature of this pandemic, its consequent, devastating, economic effects, and a lack of a centralized response or policies, much of the thinking below must be continually re-evaluated for accuracy and relevance, particularly state by state. Further, it’s reasonable to expect a wide array of legal challenges as existing frameworks evolve, as well as an increased employee/employer debate on balancing return to work with fears for employees’ safety and health—all of which may affect our perspectives below.
One challenging issue for employers to consider will be the balancing of employee privacy rights under HIPAA and other privacy laws, with employees’ reasonable expectations for a “safe working environment” under OSHA and federal, state, and local governments’ need to protect public health. For now, the Department of Labor has issued regulations clarifying that employers may now legally ask employees for personal information regarding symptoms related to COVID-19, including taking that person’s temperature.
Further, existing sick leave laws are a patch work across states and cities. Employers will have to determine what their policies need to be to both establish reasonable expectations with employees regarding whether they should return to work should they think they have COVID-19 (or if they’ve been exposed to COVID-19 in their homes) as well to ensure that such policies don’t encourage workers to return back to work prematurely; and thus risk creating unsafe work environments for those around them.
As most experts expect that the danger of COVID-19’s ongoing dissemination will continue until either herd immunity is achieved (greater than 60% of the population by most estimates) or until an effective vaccine is widely circulated, employers will likely need to implement ongoing policies that “reasonably intrude” on employees’ privacy with respect to their health status in order to help ensure safe working environments. Expect that such policies may be challenged by employees who are concerned that they will be forced to disclose personal information that they do not wish to disclose to their employers with no end in sight and the potential that well-meaning employers overstep the bounds of acceptable questions.
On the other side of the equation, much as we’re seeing today with various employers, expect that employees will also emphatically challenge decisions around worksite risks should those employees feel their employers are not taking reasonable precautions to avoid exposure to the virus. Note that “reasonable” will most certainly be a hotly debated topic.
With some recent waivers on limits to telehealth coverage and a relaxation of certain state limitations to provider licensure by state, we can expect to see an explosive growth in telehealth services for employees who are rapidly learning that many health conditions can, in fact, be effectively diagnosed and discussed from the convenience of one’s home; limiting time away from work and, more importantly, removing a serious disease transmission vector, when possible, from one’s health routine.
This favorable change in coverage will likely be combined with inexpensive at-home devices (e.g. Bluetooth-enabled pulse oximeters, thermometers, and blood pressure cuffs) to track symptoms and to alert medical staff when additional interventions are needed.
As employers, particularly those self-insured, consider the cost-benefit of these changes, they should expect a high degree of employee pressure to add more robust telehealth services to the benefits package as a way to lower physical exposure to infectious diseases as well as to create more convenient methods for being diagnosed and even cared for; all virtually.
Another major shift, which could have substantial cost implications to employers, will be substantial pressure for U.S. health care systems to build slack into their capacities. Until recently, the concept of empty beds in a hospital was anathema to these low-margin organizations where the single most important metric was keeping hospital capacity at near full. If COVID-19 has taught us one thing, it’s that complexity in the supply chain plus near-full capacity, while cost efficient, leaves little resilience in these systems when a shock like a pandemic hits. Even a modest increase in capacity, particularly if it’s designed to handle slack and not be used regularly, will drive healthcare costs up with those costs rolling down to payers and consumers, including self-insured employers.
A final cost to consider will be the mass loss of insurance coverage amongst the recently unemployed. Over the past few years, many employers have shifted their models to only allow spousal/domestic partner coverage should the spouse/domestic partner not have health insurance offered via their own employer. With a large increase in unemployment, companies should expect to see an increase in the need to provide spouse/domestic partner coverage with its concurrent expenses.
Social distancing is not going to fade away any time soon. Given that the prevalence of COVID-19 will likely continue for 12-24 months (and assuming its characteristics are not closer to the flu with seasonal mutations that make vaccines more difficult to produce), employers will need to adopt long-term policies that enforce social distancing in the workplace as a means to ensuring a “safe working environment.”
Aduro expects that many employers will have full-time COVID-19 Resource Coordinators whose job will be to enforce new government mandates, help employer’s manage risk, and implement public health best practices in partnership with leadership and facilities management. Such policies will be designed to allow “reasonable” return-to-work plans to be enacted and measured — getting employees back to work while keeping the risk of in-office infections to a minimum.
In summary, Aduro expects that employers will need to rapidly adapt to new legal, insurance, and social policies that will radically shift the status quo. If we’ve learned one thing over the past few weeks, it’s that, while many employees can perform their work virtually, most of us miss being physically together and there are certain synergies lost in remote work. We are, by nature, social creatures. Ensuring that such a powerful drive to connect in person again can be done safely will be a challenge most employers will have to take on in the next several months; whether they’re ready or not.
We know it’s a lot to consider, and it’s likely to be in flux for the foreseeable future. In Part 2 of this blog series we’ll share with you some actionable steps you can take right now to address these issues.